Grace lawyer tries to show that government concealed more secrets in Libby than the company on trial

By the end of testimony at the W.R. Grace criminal trial today, I was thinking that some of the jurors and many of the spectators were beginning to believe that the federal government was more guilty of concealing the asbestos dangers in Libby, Mont., than the international chemical company that’s on trial.

But I’ll come back to this later.

Most of the day was spent watching Grace’s top lawyer – David Bernick – trying to skewer senior government public health doc Aubrey Miller. But the specialist in environmental and occupational medicine dodged almost every thrust.

Bernick’s mission was to discredit Miller in the eyes of jurors and taint the hours of fairly persuasive testimony the doctor had presented the day before.

He accused Miller, who was the medical officer for the EPA team that rushed to Libby, of concealing facts from the jury in his testimony, such as not describing all facets of the asbestos disease that killed a Libby woman in 1987.

It was clear that no one had collected the information when Margaret Vatland died, but that didn’t prevent Bernick from barking, “You didn’t tell the jury, did you?”

It became his mantra for the morning.

Bernick demanded that Miller explain why the EPA had declared Libby an emergency cleanup site when it didn’t have proof of the danger.

And with machine-gun speed, he followed with: Wasn’t it the only way EPA could get cleanup money from headquarters without first completing a complex study on the risks facing townsfolk?

If he wanted Miller to stumble, it didn’t happen.

You had to wonder whether the prosecution team had been Super-Glued to their chairs. Assistant U.S. Attorney Kris McLean rose only once to object to Bernick’s haranguing, as opposed to the 60-plus objections the defense had launched the day before.

Miller refused to let the defense limit his answers to complex or multipart questions to a simple yes or no. But a dozen or more times Bernick cut Miller with a cry of “not responsive,” and asked the judge to have Miller’s comment struck from the record.

The Grace lawyer practiced the competitive sport of cross-examination with a wireless mike in one hand and a red and black marker in the other.

His footwork was masterful and he deserved points for agility as he slid his body between the podium – the area where Judge Molloy and the court stenographer want lawyers to ask their questions – and an enormous white board on a shaky easel so he could draw a line or two, then write a date, a word or a phrase.

By the afternoon questioning, it seemed that the 4-by-8-foot white board was angled toward the judge and Miller, and it appeared only the three or four jurors in the end seats could see Bernick’s intricate artwork.

It was almost 4 p.m. when defense lawyer Thomas Frongillo took his shots at Miller. He pushed for answers, but somewhat more gently.

He walked Miller through the timeline that Molloy set for the knowing endangerment counts in the indictment, the most severe of the eight criminal charges brought against Grace and five former executives.

He asked about the language used in EPA plans for announcing the results of the first asbestos testing in town, and then raised an issue that McLean could have gone all month without hearing again.

Frongillo questioned Miller at length on four studies that the Libby EPA team discovered that showed in painful detail that Grace wasn’t the only party in this trial that had kept secret the asbestos dangers confronting Libby and its citizens.

He quoted from studies funded by EPA in the 1970s and 1980s, which, in great detail, told of the asbestos in the vermiculite, the risk to workers, the community and consumers using or exposed to the tainted vermiculite Grace sold throughout the world.

EPA wasn’t the only federal agency keeping the secret. Frongillo asked the physician, who is now medical adviser on bioterrorism to the FDA commissioner, about studies by OSHA and the Consumer Product Safety Board – also done in the 70s and both promising regulations and warnings on vermiculite products from Libby. Neither delivered.

The lawyer shook his head, lowered his voice a bit and asked Miller if it wasn’t true that EPA had known of the asbestos danger in Libby almost as long as the agency has existed.

Frongillo said EPA was founded in 1970. Grace admitted it had asbestos in its vermiculite in 1971.